Thomas v Commonwealth Financial Planning Limited [2021] FCA 665

Thomas v Commonwealth Financial Planning Limited [2021] FCA 665

Applicants are permitted to replead in the proposed amended form subject to: addition of a third applicant who paid excess premiums personally; an undertaking to disgorge sums to trustees where relevant; group definition being modified as directed; and further particulars of fiduciary claims being provided. The statutory claim for account of profits is arguable and does not necessarily require proof of loss. Knowing receipt claims may proceed on current particulars, to be elaborated post-discovery.

Jurisdiction
Australia
Judgment Date
18 June 2021
Procedural Posture
Group Proceeding / Interlocutory Application for Leave to Amend Pleadings and Related Orders
Outcome
Applicants' application to replead allowed, subject to conditions; further orders reserved.
Legal Topics
['standing of Beneficiaries' 'group Definition in Class Actions' 'fiduciary Duties of Financial Advisers' 'statutory Claims Under Corporations Act' 'account of Profits' 'knowing Receipt Claims']
['corporations Law' 'equity and Trusts' 'superannuation Law' 'commercial Law'] ['standing of Beneficiaries' 'group Definition in Class Actions' 'fiduciary Duties of Financial Advisers' 'statutory Claims Under Corporations Act' 'account of Profits' 'knowing Receipt Claims']

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Procedural Posture

Group Proceeding / Interlocutory Application for Leave to Amend Pleadings and Related Orders

Legal Issues

  1. 1 ['Do the applicants, as beneficiaries/members of superannuation trusts, have standing to bring the claims?' 'Is the group definition adequate and does it properly capture those with claims?' 'Are the pleadings regarding fiduciary duties sufficient?' 'Is the statutory claim for account of profits sustainable without proof of loss?' 'Is the knowing receipt pleading against CommInsure sufficient?']

Ratio Decidendi

Applicants are permitted to replead in the proposed amended form subject to: addition of a third applicant who paid excess premiums personally; an undertaking to disgorge sums to trustees where relevant; group definition being modified as directed; and further particulars of fiduciary claims being provided. The statutory claim for account of profits is arguable and does not necessarily require proof of loss. Knowing receipt claims may proceed on current particulars, to be elaborated post-discovery.

Court Disposition

Applicants' application to replead allowed, subject to conditions; further orders reserved.

Orders

  • ['Within 7 days the applicants to file proposed orders and up to 3 pages of submissions on consequential orders and costs.' 'Within 7 days of service, the respondents to file any responding proposed orders and up to 3 pages of submissions.' 'Liberty to apply.']